4.  The applicant company is the owner and publisher of the weekly magazine Profil. The first applicant works as a journalist for the applicant company.
5.  In the section of the issue of Profil of 3 September 2001 dealing with society matters the applicant company published, on page 124, a two-page article by the first applicant with the headline “Ouch” and the strapline “Hermann Maier. Austria is limping. Rainer Nikowitz too is suffering from acute phantom pains as a result of the national broken leg.” The article was accompanied by a portrait of Mr Maier together with the caption “Hero Hermann's leg is causing millions of Austrians pain”.
6.  The article was meant as an ironic essay on the reaction of the Austrian population and media scene to the road-traffic accident in which the Austrian ski-racing champion Hermann Maier had injured his leg some weeks before. In this context the article cited and commented on various statements from Austrian and German newspapers and Hermann Maier's Internet homepage. The article also mentioned one of Maier's competitors, the Austrian ski-racing champion Stefan Eberharter. The relevant passage reads as follows:
“Even Maier's dear friend Stefan Eberharter had to say something, and he presumably decided against it at the last moment: 'Great, now I'll win something at last. Hopefully the rotten dog will slip over on his crutches and break his other leg too'.”
“Auch Maiers lieber Freund Stefan Eberharter musste was sagen, und er entschied sich vermutlich im letzten Moment gegen: 'Super, jetzt gwinn ich endlich auch einmal was. Hoffentlich prackt's den miesen Hund mit den Krücken hin, und er bricht sich den anderen Haxn auch noch'.”
7.  Subsequently, Mr Eberharter brought a private prosecution for defamation against the first applicant and a compensation claim under the Media Act (Mediengesetz) against the applicant company. He submitted that the above passage communicated a negative image of him as it suggested disdainful behaviour towards a colleague. Like all top athletes he earned the majority of his income from public-relations activities for sponsor companies. Because of the article in question he had already been repeatedly questioned about his attitude concerning Mr Maier's accident. If the suggested reproach of most objectionable competitiveness remained attached to him, this would entail a significant loss of value in his standing as a communication medium. His previous correspondence with the applicant company requesting it to publish his comment had remained unsuccessful.
8.  On 6 December 2001 the Vienna Regional Criminal Court (Landesgericht), having held a hearing, convicted the first applicant of defamation under section 111 of the Criminal Code (Strafgesetzbuch) and sentenced him to a fine of 40 daily payments (Tagessätze) of 500 Austrian schillings (ATS) each (making a total of ATS 20,000 [approximately 1,450 euros (EUR)]) suspended for a three-year probationary period. It further ordered the first applicant to pay the costs of the proceedings. It held the applicant company jointly and severally liable for the fine and the costs of the proceedings and further ordered it to pay ATS 10,000 (EUR 726.23) in compensation to Mr Eberharter under section 6 of the Media Act. Lastly, the court ordered the publication of extracts from its judgment.
9.  The court noted that the offending passage was to be understood in the way it would be perceived by an average reader. The magazine Profil was aimed at an understanding and intellectual readership and the majority of readers could therefore be expected to discern the satirical and humorous content of the article and the passage in particular. This was not true, however, for a person who read the article only superficially and without the necessary concentration. Such a reader was confronted at the very beginning of the article, namely in its third paragraph, with the impugned passage suggesting that jealousy, rudeness and schadenfreude were obvious characteristics of Stefan Eberharter. The content of the offending statement could furthermore not be regarded as far-fetched, as in the milieu of skiing experts Stefan Eberharter was seen as the “eternal bridesmaid” in relation to Hermann Maier and known for his rather ribald expressions. Lastly, the rest of the article only informed the reader about the coverage of the accident in other media and did not say anything more about Stefan Eberharter's character.
10.  The applicants appealed and submitted in particular that when assessing the meaning of the offending passage the court should not have applied the standard of a hasty and unfocused reader. In any event, the applicants' right to freedom of artistic expression outweighed Mr Eberharter's personal interests. The article at issue was a satirical and farcical essay on a subject of public interest. Stefan Eberharter was mentioned as the representative of all other ski-racing competitors who had no chance against the overpowering Hermann Maier. The wish put in Eberharter's mouth, to the effect that Hermann Maier should break his other leg too so that he could at last win something, was a humorous, exaggerated and furthermore comprehensible reaction. The humorous nature of the article was already evident from its headline, strapline and first paragraphs. Furthermore, the applicant company regularly published the first applicant's columns, whose satirical and humorous nature was therefore well-known to readers.
11.  On 26 June 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicants' appeal. It noted that the reading and understanding of the article demanded a very high level of intelligence and concentration. The court of first instance had therefore rightfully also taken account of readers who might peruse the first paragraphs of the article without understanding its satirical meaning and then discontinue their reading of the essay because it was too demanding. The fact that the offending statement was pure fiction and that Stefan Eberharter was only mentioned as a representative for all competitors of Hermann Maier was not discernable for such a reader. Stefan Eberharter was Hermann Maier's main challenger and he was the first to benefit from Hermann Maier's accident. Besides, any reader would assume that the author of the article had used information not yet known to the public and that there was a real background even behind comic exaggeration. The reported reaction conveyed a negative image of a top athlete who was expected to win in fair competition instead of wishing his competitor serious bodily harm. Stefan Eberharter was presented as a most egocentric person who would stop at nothing and accept any harm done to his competitors. The court concluded that Stefan Eberharter's personal interests outweighed the applicants' right to freedom of artistic expression.
12.  This judgment was served on the applicants' counsel on 5 August 2002.